Monday, December 8, 2014

Lessons from the Alt-Constitution

Brian Doherty has this provocative review of America's Forgotten Constitutions in the January 2015 issue of Reason.  Putting aside the fact that the reviewer has an obvious preference for a libertarian-conservative constitution (praising Hayek and damning the New Deal revolution), he does try to extract several lessons from my book about how to initiate constitutional change.

The advice he gives to libertarian reformers is: (1) find legal spaces to subvert the dominant political order; (2) avoid violence; (3) don't become obsessed with making cultural changes, which are difficult in a pluralistic society; and (4) keep your expectations low: don't expect that interfacing with an existing legal regime will produce results.  The combination of these lessons seems to support targeted nonviolent resistance of the legal order, coupled with non-overt forms of disaffiliation and alternative organization.

I think these are fair lessons to draw from my book, with the strong caveat that every episode in alternative lawmaking is a contingent event, with its own probabilities of success.  It also bears keeping in mind that one's tactical orientation will depend ultimately on one's goals, motivations, and substantive theories of law.  So I expect that someone with a different set of philosophical commitments can read my book and draw a slightly different set of lessons.  I do make some observations about tactics in the book, but they are general observations rather than fixed and universal guidelines for how to get things done.  For example, I don't say that violence never works (it obviously works under certain circumstances, not always in the way that it is intended, and there is always a price to be paid).  

It's fascinating to see what historical lessons and tactics for legal change seem most appealing to a disaffected libertarian, who views government as something that "does pretty much whatever it wants, under whatever excuse it pleases, and all too frequently gets away with it."  Achieving a minimal state, or at least arresting the growth of the modern administrative state, will take an openness to methods and a certain flexibility in making allies inside and outside the political system. 

The four lessons identified by Doherty don't exhaust the possible lessons from the case studies I discuss.  But they represent a thoughtful way to begin that conversation.

Thursday, September 18, 2014

Livestream of Today's 12 pm EST Book Talk at the National Archives

My book talk today in honor of Constitution Day at the National Archives will be carried on YouTube live here.

Thursday, September 4, 2014

Book Talk and Signing at National Archives Sept. 18 12 p.m.

Please join me in the McGowan Theater of the National Archives September 18, at noon, for a book talk and signing.  The address is: 700 Pennsylvania Avenue NW, Washington, D.C. 20408.  Reserve a seat here.

Friday, July 4, 2014

An Independence Day Book Review by the Daily Beast

Tom Arnold-Forster reviews America's Forgotten Constitutions for the Daily Beast:
America’s Forgotten Constitutions: Defiant Visions of Power and Community, by Robert L. Tsai, is a history of constitutions written instead and in place of the U.S. Constitution. Looking at a diverse group of “folk legal theorists” from the early nineteenth to the early twenty-first centuries, Tsai assembles a collection of eight alternatives to the federal republic imagined in 1787. It’s a nicely conceived book, with each “defiant vision” taking up a chapter. And it’s engaging to read: Tsai is a law professor but avoids legalese. He writes briskly but attentively.

He shows that “We the People” has been a problem from the start, and that much has hinged on exactly how plural the pronoun is thought to be....

Rather than dismissing these ideas as silly utopias, Tsai treats them as part of the American legal tradition. And the result is counterfactual in the best sense: an array of unfamiliar and unsettling ideas, which show that the “original meanings” of 1787 (or their malleable afterlife in a “living constitution”) are not the only ones to have existed....

So Tsai gives us a history “characterized by adaptation and reversal, innovation and regression, fragmentation and reorganization.” He suggests that the United States is less about stable liberalism and expanding freedom than aggressive democracy and applied power....his picture is far richer than the grim founder worship usually found in American political orthodoxy.

For Tsai’s constitution writers, the U.S. Constitution stands as an obligatory model, something they necessarily define themselves in relation to....And all, in the end, underline just how largely the Constitution figures in the American political imagination: less a charter of freedom than a document of power.
The full review can be found here.

Sunday, May 4, 2014

Boston Globe Op-Ed: "From NSA to Race, A Protector of Rights Needed"

The Boston Globe has published my piece proposing the creation of a new office dedicated to protecting civil and human rights.

Update:  More context for the proposal here.

Monday, April 28, 2014

Self-Defense and the Fourteenth Amendment

Dance and sing you black creatures
of Mother Africa.
Move to the sound of the drums
of your forefathers.
Hold on to your drums and beat
them in defiance of the slavemaster and
let their thundering sound awaken those who sleep.
–Mabel Robinson Williams, Transition (1966)

Mabel Robinson Williams passed away last week.  Williams may have been most famous for being married to Robert F. Williams, the controversial former head of the NAACP in Monroe County, NC, but she was an intriguing theorist and fierce activist in her own right.  She recalled that her father slept every night with a pearl-handled pistol under his pillow in case the Klan’s night riders attacked.  As an adult, she served as Secretary of the local NAACP, co-founded a newsletter called The Crusader, organized a mutual aid society called CARE, and helped run Radio Free Dixie.  Mabel called herself a “co-warrior” and “helpmate” to Robert, even as she served as a nurse’s aid and later operated a day care.  When her sons joined a picket against a segregated swimming pool, she sat in the car with guns, keeping one eye out for armed whites.  She and other female members of a rifle club trained to protect their families against the Klan.  Once, Mabel came out of her house with a shotgun and chased off deputies trying to arrest her husband.

Husband and wife worked together on Negroes With Guns (1962), which articulated a theory of self-defense of constitutional rights.  The Williamses “did not advocate violence for its own sake,” nor did they urge “reprisals against whites.”  Instead, they argued that armed self-reliance was compatible with the tactics of peaceful protest promoted by Martin Luther King, Jr. to promote legal change (but they blamed proponents of non-violence for inflexibility in demanding that blacks renounce their right to self-protection).  In their view, armed self-defense was justified because of a “breakdown of the law” in failing to protect black families from armed whites.  As they tell it, Brown v. Board of Education unleashed not only generalized racial unrest in the South, but also a wave of violence directly against NAACP members and their allies.  “[T]here was no such thing as a 14th Amendment to the Constitution in Monroe, NC,” because local officials refused to enforce the law and protect the life, liberty, and property of black families.  Federal and state officials, too, were nowhere to be found.  In fact, many in the community believed that state and local officials were conspiring to deprive black Americans of their constitutional rights. Black self-defense filled this gap in the constitutional order.

Any limited theory of armed self-defense became greatly complicated by the pair’s embrace of Marxist revolutionary ideas about the worldwide liberation of the oppressed.  Negroes With Guns predicted a day when racial violence in the United States became so pervasive that “non-violence will be suicidal in itself.”  It cited with approval the legacy of John Brown favoring the “righteous use” of weapons to “destroy those things that block [the American Negro's] path to a greater happiness in life.”  Linking armed tactics with revolutionary ends blurred the lines between constitutional preservation and constitutional usurpation–a recurring problem that faced all black power groups during this period.  In theory and practice, it became difficult to draw clear lines between self-defense and the armed instigation of foundational change.

After a protest turned unruly and Robert Williams was charged with kidnapping a white family (he claimed to be protecting the family from a mob), the pair fled.  While in exile in China, Robert briefly held the Presidency of the Republic of New Afrika, founded by the followers of Malcolm X after his assassination.  Professor Pero Gaglo Dagbovie recounts that in later years, Mabel became a community historian and keeper of an oral tradition of the Black Power period.  This tradition includes not only the major events that transpired during a tumultuous period of American history, but also popular interpretations of the law.


Cross-posted at Concurring Opinions.

Thursday, April 24, 2014

Contested Ideas About Consent

One of the challenging things about studying popular constitutionalism is that theories of power, community, and tactics can be all jumbled together.

For instance, from what I can gather, Cliven Bundy appears to be a rancher who holds a strong, individualist view of property rights and espouses a theory of government in which the local somehow trumps the national (and likely the state as well).  Tactically, he favors the use of private force in defense of constitutional rights and powers (he also believes that he is entitled to the assistance of local and state authorities to resist the federal government).  For now, his statements justifying the use of force seem to be limited to repelling invasions of property (his cattle, money) and personal security (his body, the safety of his family), so they can be plausibly defended on self-defense grounds (in natural law or other ethical terms, not based on statute or a written constitution).  His vague call for a "range war" muddies his claim to principled use of extralegal tactics and opens him up to charges that he is advocating organized violence against the state, so you can bet his next words and actions will be carefully scrutinized (recall that John Brown was tried for insurrection, and black nationalists were often accused of such crimes).

What's harder to figure out is Bundy's theory of consent.  Every popular constitutionalist must present a coherent theory of consent to rebut arguments that simple lawlessness is being advocated.  Secessionists favored the "compact theory" of consent, which holds that each state agreed to the formation of the U.S. Constitution and that each state could withdraw its consent.  Abraham Lincoln and defenders of the Union rejected this approach, saying that the people in the several states gave their consent and that only the people as a whole could dissolve the bonds of political community.

John Brown argued that groups of Americans (slaves, freedmen, and abolitionists) joined by their conviction and shared tragedy could disaffiliate from the existing form of government without committing treason.  From there, group-based theories of consent flourished.  Modern black nationalists and white separatists argue that racial or ethnic identity provides the basis for giving or withdrawing consent.  Typically, disgruntled Americans signal their disaffiliation through a public act: meeting in convention and signing a public declaration.

What makes sovereign citizens and their ilk different is that they often argue that each individual has the power to withhold the consent of the governed. For many observers, this is a theory of consent that descends into anarchy.  There is also a more selective, and sometimes mysterious, quality to the extent of their disaffiliation. Often, such figures "declare independence" when pressed, during criminal trials or litigation over taxes or property rights. Others, without any prompting, file documents in traditional government offices announcing their unorthodox legal views, sometimes over and over again.

Bundy has said he "respect[s] the federal government" but also that it "doesn't have its place in the state of Nevada . . . and Clark County, and that's where my ranch is.  The federal government has no power and no ownership of this land." Unless someone sees an open and notorious act of disaffiliation from the federal government, at this point it looks like he is engaged in selective (issue by issue?) rejection of jurisdiction, backed by an account of political structure that is clearly subversive but not fully implemented.

The task of ascertaining one's constitutional theory is further complicated when more mainstream figures start using the language of popular sovereignty.  It can be hard to figure out how much an elected official believes and how much the official is simply catering to attitudes that are perceived to be widely shared by constituents.  See, for example, this candidate for Governor of South Dakota, who favors state nullification of unjust federal laws, admires Bundy, and shares his belief that sheriffs are the highest law enforcement officials in the land.  Lora Hubbel plainly has not disaffiliated from state government, holds radical localist views of government, supports extralegal tactics, and holds the federal government in antipathy (but it's unclear whether she believes she owes allegiance to the U.S. government).

So, the next time you hear a political aspirant, activist, or lawyer deploy arguments about popular sovereignty, ask that person: (1) what is the basis for making such claims; (2) what tactics are justified; and (3) to what government(s), exactly, does he or she owe allegiance?


Cross-posted at Concurring Opinions.

Monday, April 21, 2014

Pop Matters Review: "America's Forgotten Constitutions" Bear Potent Messages for Our Times

Hans Rollman reviews the book for Pop Matters.  From the review:
Robert Tsai’s new study, America’s Forgotten Constitutions, offers a refreshing and innovative take on a centuries-old topic . . . .
This is not merely a collection of assorted oddities or constitutional anecdotes from America’s political margins, however. Taken together, they comprise a chronological narrative of some of the key issues galvanizing political activism throughout the past 200 years of American history. . . .
By exploring the efforts of those who went beyond mere intellectual debate, and who actually tried to build alternative nations or states within the US, Tsai offers a unique vantage into the ideological struggles underpinning American history and politics. . . .
Tapping into the popular imagination through the various pop culture devices of the era was essential for many of them in generating support and working through their ideas; indeed, the constitutions themselves–while articulated as legalistic devices–might equally be seen as expressions of popular culture and collective imagination. . . .
The style weaves that delicate balance of accessible yet scholarly language. It’s fine fodder for the pop history or politics buff, as well as a useful background text for more serious scholars. It’s an engaging read: enjoyable and thought-provoking at the same time.

Library Journal Review

A review of America's Forgotten Constitutions from the Library Journal:
Tsai . . . has selected eight transformative legal texts to show how legality and social process interact in dissident communities and diverse settings. The documents represent an astonishing array of ideologies from utopian socialism and internationalism to Confederate and black power movements. Using an analytical framework based on categories of sovereignty and self-rule, each chapter considers the historical significance and dynamic growth of its community, culminating in marginalization or integration of its philosophies into the broader legal and political culture of this nation. The organization is historical, beginning with 19th-century social campaigns to nascent Aryan nation communities. The author successfully demonstrates the difficulties of establishing and maintaining alternative legal cultures even with strong, visionary leadership. Including extensive notes, this book suits students of law and society, yet the smooth-flowing narrative should also appeal to general readers of alternative American history.
VERDICT: A deft, readable investigation of this country's complex legal traditions with lessons for contemporary fringe groups.Antoinette Brinkman, formerly with Southwest Indiana Mental Health Ctr. Lib., Evansville

Thursday, April 17, 2014

Cliven Bundy and Popular Sovereignty

If you've been following the ranchers' fight against the federal government and seen the latest news that armed ranchers have come to the aid of Cliven Bundy to keep the Bureau of Land Management from seizing his cattle grazing on federal lands, you will have noticed some commentators who praise their stand as a kind of "civil disobedience" (the National Review has even compared Bundy to Gandhi!). Others--including Senate Majority Leader Harry Reid--say Bundy is engaged in simple lawlessness, as he's not paid ranching fees for decades and is flouting multiple federal court orders. Either answer, of course, is too simplistic.

In fact, the Bundy standoff is best understood as an organized effort to assert popular sovereignty.  But what kind of theory of power and community does the saga represent? In my quick and dirty take (subject to further refinement), rancher sovereignty appears to be a combination of the legacy of pioneer constitutionalism, a tactical resort to states' rights, and a healthy dose of contemporary radical localism.

The aspect of rancher sovereignty that has received the most media attention is states' rights. In some of Bundy's statements, he has said that the land belongs to Nevada, but notice that it's always done to undermine the federal government's claim to the land.  He probably does believe that, relatively speaking, the state has more of a claim to the land than the feds. However, the rest of his statements and actions suggest he is only tactically relying on states' rights.

In fact, rights foundationalism is most important to rancher sovereignty. Bundy contends that his family has made productive use of the land since the 1880s, and the fact that his labor has mixed with the land gives rise to a fundamental liberty/property right to continue using that land as he sees fit. That individual right, he asserts, trumps countervailing federal law and the Nevada State Constitution (to the extent it recognizes the supremacy of federal law). This sounds bizarre to anyone who has taken Constitutional Law I, but I assure you that this conception of rights is fairly widely shared. It derives from a natural law view of rights, one that has been deeply inflected by the American frontier experience. The belief system that once made sense in the world inhabited by ranchers living on open lands, when legal rules were openly flouted and productive use of land could ripen to legal title.

Moreover, there is a strong dose of radical localism.  Apparently, having lost repeatedly in the federal courts, he has turned to filing documents with not only state officials, but also the Clark County Sheriff, county commissioners, and even the district attorney.  These documents give emergency notice of a "range war against the police state" and demand the protection of state and local laws against the power of the national government.  Bundy states:
First I’m fighting this thing on paper. Then I’ll go after the contract cowboys. And then if I assume they’re (BLM) ready to go (confiscate the cattle) then I’ll go after them with the media, with ‘we the people’ and whatever else it takes....What I am organizing are lots of groups. They’ll come from hundreds of miles away. They’ll be multiple users; the hunters, campers, off-roaders, miners, sightseers, Tea Party people.
But it's clear to Bundy that the sheriff is the most important actor in this constitutional theory. "The sheriff is the only one with the policing power and arresting power in Clark County,” he states. "The Clark County sheriff has more constitutional policing power in Clark County than the president of the United States and his army."

Again, this statement will look absolutely ridiculous to anyone who practices law in the courts, as it inverts the entire structure of government created by the 1787 Constitution.  But that's the point of the ideas of radical localism that persist among some members of the Tea Party, Patriot movement, and those who call themselves "sovereign citizens."  Elevating the sheriff is the best way to subvert the hierarchical features of mainstream constitutionalism.  According to this theory of government, the county sheriff (not the U.S. Attorney General) is the highest law enforcement officer.  Some practitioners try to tie this view to older historical accounts of the township and shire; others are content that the sheriff evokes older American rule of law traditions.  Bundy himself in one interview has said he and his supporters refuse to accept the authority or jurisdiction of the BLM--and may even go so far as to deny the legitimacy of the federal government as a whole.

I said earlier that Bundy's reliance on states' rights was largely tactical, but there are tactical benefits to radical localism as well.  The approach aligns seamlessly with practical efforts to subvert the conventional constitutional order by taking over key local offices through elections and, failing that, appointing oneself as sheriff and deputizing true believers.


Cross-posted at Concurring Opinions.

Friday, April 11, 2014

Making Changes to Fundamental Law

Thanks to Deven, Gerard, and everyone else at Concurring Opinions for the warm welcome.  I plan to blog a bit about the new book, America’s Forgotten Constitutions, as well as some matters related to ongoing research.

A few words about the conception of the book.  It combines American history and legal theory in a way that I hope tells us some new things about events and ideas that have already received some scholarly attention.  It also analyzes some events in constitutionally significant terms when they previously have not received such treatment (e.g., the world federalist movement, the recent drafting of an Aryan constitution).  In doing so, the book seeks to shed light on certain recurring theoretical questions about our constitutional process, writ large.  The primary organizing themes are the dual meta-principles of written constitutionalism and popular sovereignty, combined by the Framers of the U.S. Constitution and unleashed on the population.  I’m interested in how average people adapt these basic principles to forge new relationships and communities, develop novel procedures for authorizing a constitution, and defend extra-legal tactics.

The book’s ambition is to go beyond current treatments of “popular constitutionalism”–so we can have an honest discussion about the energizing and dangerous aspects of our political tradition.  I pick eight examples where Americans wrote constitutions at various important moments in time, in order to explore these questions.  The colorful cast of characters consists of squatters, native Americans, slaveholders, abolitionists, socialists, world federalists, black nationalists, and white separatists.  I explore how the functions of writing and notions of sovereignty mutate after the Founding period.

Allow me to begin by suggesting that these constitution-writing episodes push us to reevaluate what we think we know about the procedure for making constitutional law.  Just to get the ball rolling, much of the literature identifies the following ways of altering fundamental law (let’s note but for now bracket the crucial lurking question of the relative legitimacy of each approach):

1.  Making foundational law during a true revolutionary moment, marked by political breakdown or some other break in historical time, when procedural questions are up for grabs along with substantive commitments.

2.  Formally amending a constitutional text (in the U.S. Constitution, according to the process outlined in Article V) without rejecting the continuing legitimacy of the legal order created.

3.  Creatively using conventional national institutions (say, by one party winning successive elections, enacting transformative laws, making key judicial appointments, winning landmark decisions through litigation).  Again, this is done without rejecting the authority of the overarching legal order.

4.  Gaining control of key bureaucracies (White House, OLC, DOD) or forging government-private relationships (such as Federalist Society-DOJ-Judiciary).  These social networks may not be lasting, but the goal is to achieve major shifts in substantive law rather than to overthrow an entire system.

5.  Creating a social movement that signals popular discontent, shapes public debate, forces national institutions to rethink governing commitments.

What are the protagonists in my stories doing?  For the most part, options # 2, # 3, and # 4 elude their grasp.  Typically, they compose a small group holding marginalized ideas, so it is not realistic to dominate any particular political party, win successive elections, or gain ideological control of key institutions.  Even where, as with the Confederates, they enjoyed a degree of access to formal power at the national level, they have given up on the possibility of making fundamental law within the conventional rules.  Option # 5 is possible for a few of my groups, but in the main they find themselves on the outliers of oppositional movements and trends.  In fact, the act of writing a constitution signals their differences with other dissenters in terms of state-building goals and tactics, not to mention the depths of their despondency that legal change through conventional means is possible.

None of my popular legal theorists believes that anything in the 1787 Constitution or our political tradition requires preapproval to write a new constitution; it merely dictates how rewrites of the existing one must be accomplished.  The right to write is inherent and fundamental.  They also agree that the people have the power to alter the basis and terms of political community.  Where they tend to differ is over tactics and procedures.

For some–let’s call them the classical revolutionaries–they believe themselves to be engaged in process # 1.  They confidently point to ample evidence of political breakdown, and argue that they are justified in authoring a new governing document and coming up with completely new protocols for deliberation and ratification.  This best captures the slaveholding statesmen who formed the Confederate States of America, though their theory of consent is vigorously disputed by Lincoln and other defenders of the 1787 Constitution.

At first blush, the classical situation also seemingly captures John Brown’s proposal for a new republican form of government and the Republic of New Afrika’s constitution created by the followers of Malcolm X after his assassination.  In both cases, people’s conventions determined that the original Constitution did not bind them, either because it was irreparably broken due to slavery and racial subjugation, or because the Framers never gained the rightful consent of the governed (i.e., slaves and former slaves).

Here’s where it gets complicated.  Most people don’t agree the country faces a true revolutionary moment.  Each dissident group gains supporters, but never enough regular folks to threaten the national legal order as a social movement, or enough elites to control any formal levers of power.  Each struggles with the question of violence as a tool for constitutional change, ultimately concluding that under extreme circumstances targeted violence is justified by the political tradition.  Force, they believe, can be constitutionally used to liberate slaves or defend against private and public acts of violence, inequality, and degradation.  Each group has national aspirations: in the case of John Brown, he hopes his constitutional vision will supplant the tottering slave-holding vision propped up by the High Court; for Imari and Gaidi Obadele, the goal is to convince the U.S. to give up the former slaveholding states so a black republic can be established.

As they await better conditions for revolutionary consolidation, created by themselves or others, they decide to start living out their constitutional principles.  In other words, their constitutions are not simply pieces of paper to be discussed one day if enough people are intrigued.  This shift toward social implementation is somewhat seamless for their respective communities because they espouse a strong dose of what I call “ethical sovereignty”–the notion that true legal authority derives from shared moral beliefs.  They begin to sustain law-based communities despite lacking control of territory and not completing the tasks of authorizing and implementing their constitutions.  In fact, while they see themselves as pursuing strategy # 1, I think both groups at some point transition into a different strategy of constitutional change: modeling an alternative community.  The Republic of New Afrika lasts longer than John Brown’s group, mostly because Brown decided to force the action at Harpers Ferry, and his execution decimates that nascent law-based community.  But New Afrikans are also better at it in that they reach more deeply into the recruitable population.

Once we see that dissenters can use imperfectly authorized constitutions to model alternative communities (let’s now call it strategy # 6), we start to notice other things.  Modeling derives from the same basic principles of popular sovereignty and written constitutionalism.  Modeling can stand alone or supplement any of the other strategies for constitutional change.  Innovative use of state and local laws (not simply national laws and institutions) can facilitate the formation of alternative constitution-based communities (more on this in a future post).  Suddenly, we start to notice a lot more groups of people writing constitutions, for all sorts of reasons and to varying degrees of success.


Cross-posted to Concurring Opinions.

Electric Politics Interview

George Kenney interviews me for Electric Politics

Wednesday, April 9, 2014

Guest Appearance at Concurring Opinions

For the next few weeks, I'll be blogging about the book and related topics at Concurring Opinions. Hope to see everyone over there.

Friday, February 28, 2014

Carr on the Death of Chokwe Lumumba

Professor Greg Carr (Howard-Afro-American Studies) reflects on the life and contributions of Chokwe Lumumba, Mayor of Jackson, Mississippi, and former member of the Republic of New Afrika.

Tuesday, February 11, 2014

Legal History Blog covers book lecture and workshop at Gonzaga Law

Details of the presentations can be found here.

Kirkus review

Kirkus reviews America's Forgotten Constitutions: "The author succinctly explains each of these constitutions with the thoroughness of a legal mind and writing that avoids legalese."  More here.